C L A S S A C T I O N R E P O R T E R Friday, December 14, 2007, Vol. 9, No. 248 Headlines 180 CONNECT: Faces Labor Law Violations Lawsuits in Three States 180 CONNECT: Employees File FLSA Violations Lawsuit in Florida ABX AIR: Seeks Dismissal of RICO Violations Lawsuit in Ohio ACTIVISION INC: Faces Fraud Suit Over Guitar Hero III Video Game ALLIANCE SEMICONDUCTOR: Dismissed from U.S. SRAM Antitrust Suits AROTECH CORP: Consolidated Securities Complaint Filed in N.Y. ARVIDA/JMB PARTNERS: Still Faces Camellia Island Project Lawsuit ARVIDA/JMB PARTNERS: Still Faces Fla. Suit Over Defective Homes ASTEA INT'L: Pa. Court Dismisses Securities Fraud Litigation AUTOMOBILE INDUSTRY: Cal. Wins Favorable Ruling in Air Law Case BRAVO! BRANDS: Vianale Expands Purpored Securities Class Period CARROLS CORP: N.Y. Court Mulls Motion in Former Workers' Lawsuit CEC ENTERTAINMENT: Cal. Court Mulls Motion to Certify FACTA Suit DELTA FINANCIAL: Denied Appeal of Labor Suit Summary Judgment DOMTAR INC: Settles Carbonless Sheets Price Fixing Lawsuits FAR EAST BROKERS: Recalls Fishing Games for Lead Standard Breach FLAT GLASS MAKERS: Face Suit in Penn. for Alleged Price Fixing ILLINOIS: Tazewell Sheriff Sued for Denying Services to Inmate IRONWOOD COMMS: Faces Wage, Hour Laws Violations Suit in Calif. KMART: Recalls Pants with Drawstring Posing Entrapment Risk LONGWOOD MANAGEMENT: Nursing Home Workers to Recoup $4M in Wages MID-CENTURY INSURANCE: Allowed to Directly Collect Authority Fee NATIONAL BEEF: 8th Circuit Mulls “Schumacher” Defendants' Appeal NBC UNIVERSAL: "Lucky X" Game Illegal, Calif. Lawsuit Alleges OHIO: Settlement Reached in Voyeurism Suit Against Dead Landlord PROFESSIONAL INVESTMENT: NSW Court Blocks Westpoint-Related Suit RETAILERS: Accused of Fraudulently Marketing Organic Milk RJ REYNOLDS: Minn. Appeals Court Revives “Dahl” Lights Lawsuit SEARS: Recalls Hooded Sweaters Posing Strangulation Hazard SIMPLICITY INC: Crib Manufacturers Face Suit Over Design Flaw TEMPUR PEDIC: Securities Fraud Lawsuit in N.D. Ga. Dismissed WEST PUBLISHING: N.Y. Court Dismisses Suit Over BAR/BRI Course Asbestos Alerts ASBESTOS LITIGATION: Casella Waste Reserves $366,000 for Cleanup ASBESTOS LITIGATION: ASARCO Clause Extends to All Insurance Cos. ASBESTOS LITIGATION: ASARCO to Hire Anderson Kill as Counsel ASBESTOS LITIGATION: Filing of Late Claims May Delay ASARCO Plan ASBESTOS LITIGATION: Grace, Other Parties File Daubert Motions ASBESTOS LITIGATION: Appeals Court Denies Grace's Rehearing Plea ASBESTOS LITIGATION: Trustees Want Tersigni Inquiry to Proceed ASBESTOS LITIGATION: Court OKs Grace Settlement w/ PD Claimants ASBESTOS LITIGATION: Grace Settles w/ National Union, Claimants ASBESTOS LITIGATION: District Court Affirms Disallowance Order ASBESTOS LITIGATION: Dana to Assume Mt. McKinley, Century Claims ASBESTOS LITIGATION: Scapa Group Still Has Injury Suits in U.S. ASBESTOS LITIGATION: Suit Filed on Laborer's Behalf v. 61 Firms ASBESTOS LITIGATION: SC Favors N.Y. Over Intriago in Injury Suit ASBESTOS LITIGATION: Consolidation of Foster Wheeler Suit Stayed ASBESTOS LITIGATION: Ex-Lawyer Gets 15-Year Jail Time for Fraud ASBESTOS LITIGATION: Gordon-Smith Issued $100T Fine for Breaches ASBESTOS LITIGATION: ADAO Says Asbestos Found in Toys & Products ASBESTOS LITIGATION: UCATT Welcomes Commitment to Address Ruling ASBESTOS LITIGATION: Judge Says SDG&E Workers Deserve New Trial ASBESTOS LITIGATION: Standard Bank Could Face More Injury Claims ASBESTOS LITIGATION: Contact Energy Mulls Closure of N.Z. Plant ASBESTOS LITIGATION: Pensioner Files Lawsuit v. Wrexham Council ASBESTOS LITIGATION: Engineer's Kin Gets Wins GBP60T Payout Bid ASBESTOS LITIGATION: “Ban Asbestos Act” Faces More Oppositions ASBESTOS LITIGATION: R.I. Widow Sues 51 Defendants in Ill. Court ASBESTOS LITIGATION: Connelley Action Filed in W.Va. v. 65 Firms ASBESTOS LITIGATION: Class Action v. 105 Firms Brought in W.Va. ASBESTOS LITIGATION: Fears Over Dust from Trucks' Tires Spread ASBESTOS LITIGATION: Builder Admits to Improper Hazard Disposal ASBESTOS LITIGATION: Asbestos Linked to U.K. Pensioner's Death ASBESTOS LITIGATION: W.R. Grace Loses Appeal of Ruling in Case ASBESTOS LITIGATION: Bid to Remove Asbestos From Bldg. Affirmed ASBESTOS LITIGATION: Family May Lose Payout in Postcode Lottery ASBESTOS LITIGATION: 58 Miners Worked in Minnesota's Iron Range ASBESTOS LITIGATION: Ore. Court Upholds Ruling in Dahlke Lawsuit ASBESTOS LITIGATION: Dana Satisfies All Chapter 11 Requirements ASBESTOS LITIGATION: Court Denies Elliott Summary Judgment Bid ASBESTOS LITIGATION: Court Issues Split Ruling in Utica Lawsuit ASBESTOS ALERT: Panolam Ind. Unit Records 299 Claims at Sept. 30 New Securities Fraud Cases SYNTAX-BRILLIAN: Squitieri & Fearon Files Securities Fraud Suit ********* 180 CONNECT: Faces Labor Law Violations Lawsuits in Three States ---------------------------------------------------------------- 180 Connect, Inc., and its subsidiaries Ironwood Communications, Inc., and Mountain Center, Inc. faces three class actions in federal court in Washington, California and Oregon that were brought by current and former employees. The suits are alleging violations of state wage and hour laws and a class action alleging violations of state paycheck laws in federal court in California, according to the company's Nov. 14, 2007 Form 10-Q Filing with the U.S. Securities and Exchange Commission for the quarterly period ended Sept. 30, 2007. 180 Connect, Inc. -- http://www.180connect.net-- is one of North America's largest provider of installation, integration and fulfillment services to home entertainment and communications, enterprise data and home integration service industries. The Group provides these services in the U.S. It employs technicians in each of its 82 locations to ensure the timely completion of its services. 180 CONNECT: Employees File FLSA Violations Lawsuit in Florida -------------------------------------------------------------- 180 Connect, Inc. faces a suit in the U.S. District Court for the Middle District of Florida alleging violations of the Fair Labor Standards Act. The suit was filed on September 2007. Its purported class action period relates back to September 2004 and seeks to certify a nationwide class of similarly situated employees. The suit is “Craig v. 180 Connect Inc., Case No. 6:07-cv-01522- GAP-DAB,” filed in the U.S. District Court for the Middle District of Florida under Judge Gregory A. Presnell with referral to Judge David A. Baker. Representing the plaintiffs is: Carlos V. Leach, Esq. Morgan & Morgan, PA 20 N. Orange Ave. - Ste. 1600, PO Box 4979 Orlando, FL 32802-4979 Phone: 407/420-1414 Fax: 407/420-5956 E-mail: cleach@forthepeople.com Representing the defendants is: Carlos J. Burruezo, Esq. Littler Mendelson, PC 4767 New Broad St. Orlando, FL 32814 Phone: 407/514-2637 Fax: 407/514-2638 E-mail: cburruezo@littler.com ABX AIR: Seeks Dismissal of RICO Violations Lawsuit in Ohio ----------------------------------------------------------- ABX Air, Inc., a subsidiary of DHL Express, is seeking for a dismissal of a purported class action filed against it in the U.S. District Court for the Southern District of Ohio, alleging violations of the Racketeer Influenced and Corrupt Organizations Act. The suit, filed on April 13, 2007, named as defendants: -- ABX Air, Inc.; -- DHL Holdings (USA), Inc.; -- Joe C. Hete, president and chief executive of ABX; -- Gene Rhodes, vice-president for human resources of ABX; -- Douglas Steele, human resources manager for ABX; -- Garcia Labor Co. of Ohio Inc., temporary labor provider; -- Garcia Labor Co. Inc. of Tenn., temporary labor provider; -- Maximino Garcia, president and owner of Garcia Labor; -- Gina Luciano, director of human resources of Garcia Labor; -- Dominga McCarroll, vice-president of Garcia Labor; The complaint alleges ABX conspired to employ more than 1,000 undocumented immigrants in a scheme. This scheme was executed between approximately December 1999 and January 2005 and has directly and proximately caused the wages paid to named plaintiff and the class to be substantially depressed, i.e., below the level of wages ABX and DHL would have paid its lawful workers if they had not engaged in the scheme to hire unauthorized aliens (Class Action Reporter,May 29, 2007). Lead plaintiff ABX employee, Ronnie Hager claims ABX conspired with co-defendant Garcia Labor Co., of Morristown, Tenn., to recruit illegal workers and depress U.S. citizens’ wages. Plaintiff files the suit as a purported class action, on behalf of himself and all hourly employees of ABX and DHL at their Wilmington, Ohio facility, authorized for employment in the U.S. from December 1999 to the present, to recover damages and other appropriate relief from the defendants for violations of the RICO Act, 18 U.S.C. Section 1961 et al. The class claims top officers of all the corporations knowingly hired illegal workers to sort freight at Wilmington. They claim the conspiracy lasted from December 1999 until January 2005, and that Garcia provided rental housing in Wilmington for the illegal workers it provided. Further, they claim ABX kept hundreds of illegal workers on staff after the Social Security Administration told it twice that the workers were using fraudulent documents. Several corporate officers have been sentenced to prison after the Transportation Security Agency found that virtually all the 400 workers provided by Garcia were illegal, the complaint states. Questions of law that the purported class raise, include: (a) whether ABX has engaged in an illegal immigrant hiring scheme; (b) whether DHL has engaged in an illegal immigrant hiring scheme; (c) whether Garcia Labor Co. of Ohio, Inc. and Garcia Labor Co., Inc., have engaged in an illegal immigration hiring scheme; (d) whether the individual defendants have conspired to perpetuate the illegal immigrant hiring scheme; (e) whether ABX and the individual defendants have engaged in this scheme to depress the lawful employees' wages; (f) whether DHL and the individual defendants have engaged in this scheme to depress the lawful employees' wages; (g) whether Garcia Labor and the individual defendants have engaged in this scheme to depress the lawful employees' wages; (h) whether the illegal hiring scheme has caused the class members' wages to be depressed; (i) whether the illegal immigrant hiring scheme violates RICO and the Immigration and Nationality Act, 8 U.S.C. Section 1324; and (j) whether ABX, DHL and Garcia Labor should be enjoined from conducting further racketeering activity and whether the individual defendants should be bared from further association with ABX and DHL. Plaintiff prays that the court enter a judgment: -- awarding damages in an amount equal to three times the damage caused the putative class by defendants' racketeering activity pursuant to 18 U.S.C. Section 1964(c); -- awarding pre- and post-trial interest; -- awarding reasonable attorney fees and court costs incurred in the prosecution of this action, including all expert witness fees and other litigation expenses; -- declaring this action to be a class action properly maintained pursuant to Civ. R. 23 and certifying the named plaintiff as class representative and his counsel as class counsel; and -- awarding any other relief to which plaintiff may be entitled in law or equity that the court considers to be appropriate under the circumstances. ABX has filed a motion to dismiss the complaint, which is currently pending, according to the company's Nov. 14, 2007 Form 10-Q Filing with the U.S. Securities and Exchange Commission for the quarterly period ended Sept. 30, 2007. A copy of the complaint is available free of charge at: http://ResearchArchives.com/t/s?1d49 The suit is “Hager v. ABX Air, Inc. et al., Case No. 2:07-cv- 00317-JDH-MRA,” filed in the U.S. District Court for the Southern District of Ohio under Judge John D. Holschuh with referral to Judge Mark R. Abel. Representing plaintiffs are: Douglas Carter Knisley, Esq. Knisely Wilhelm & Knisely 1395 Dublin Road Columbus, OH 43215-1046 Phone: 614-486-9503 E-mail: doug@knisleylaw.com - and – John T. Murray, Esq. Murray & Murray 111 E. Shoreline Drive P.O. Box 19 Sandusky, OH 44871-0019 Phone: 419-624-3000 Fax: 419 624 0707 E-mail: jotm@murrayandmurray.com ACTIVISION INC: Faces Fraud Suit Over Guitar Hero III Video Game ---------------------------------------------------------------- Activision, Inc. (NASDAQ: ATVI) is facing a class action that claims the company deceives consumers by falsely advertising that its game, "Guitar Hero III: Legends of Rock," for Nintendo Wii, supports Dolby Pro Logic II surround sound. The suit says the game doesn't support Dolby, or even simple stereo sound on the Wii, the CourtHouse News Service reports. This consumer class action was filed in the U.S. District Court for the Central District of California. It arises from defendant's engaging in deceptive and unlawful conduct in designing, manufacturing, marketing, distributing, and selling a defectively designed music video game for the Nintendo Wii game console. The complaint claims Activision has known this since October but still sells the game under misrepresentations. Named plaintiff Samuel Livingston brings this action pursuant to Rule 23(b)(2) and (b)(3) of the Federal Rules of Civil Procedure, on behalf of all persons or entities residing in the United States who purchased a Guitar Hero III video game for the Wii which was advertised, labeled or marketed as supporting stereo and/or Dolby PRo Logic 2 sound options. He wants the court to rule on: (a) whether the Guitar Hero II video game for the Wii fails to conform to Activision's advertised product specifications; (b) whether the Guitar Hero III video game for the Wii actually supports or complies with the Dolby pro Logic 2 specifications and can properly output audio content to a Dolby Pro Logic 2 capable receiver; (c) whether defendant knew or should have known that the Guitar Hero III video game for the Wii does not actually support or comply with Dolby Pro Logic 2 specifications; (d) whether defendant made false and/or misleading statements of fact to the class and the public concerning the capabilities of Guitar Hero III video game; (e) whether defendant's false and/or misleading statements of fact to the class and the public about the capabilities of the Guitar Hero III video game for the Wii, and the concealment of material facts, were likely to deceive the public; (f) whether defendant knowingly concealed the defective design of the Guitar Hero III video game for the Wii with respect to Dolby Pro Logic 2 or stereo capabilities; (g) whether defendant refused to recall the defectively designed Guitar Hero III video game for the Wii in order to increase sales of new video game; (h) whether defendant misrepresented the capabilities of the Guitar hero III video game for the Wii; (i) whether defendant made representations that the Guitar Hero III video game for the Wii was of a particular standard or quality, which it did not have; (j) whether defendant made representations that the Guitar Hero III video game for the Wii had characteristics, uses, benefits, or qualities which it did not have; (k) whether, by its conduct, defendant has engaged in unfair or unlawful business practices with respect to the advertising, marketing, and sale of the Guitar Hero III video game for the Wii; (l) whether, by its conduct, defendant has engaged in unfair, deceptive, untrue, or misleading advertising of the Guitar Hero III video game for the Wii; (m) whether defendant violated consumer protection statutes and/or false advertising statutes and/or state deceptive business practices statutes; and (n) the nature and extent of damages and other remedies to which the conduct of defendant entitles the class members. Plaintiff request that the court enter an order or judgment against defendant including the following: -- certification of the action as a class action pursuant to Rule 23(b)(2) of the Federal Rules of Civil Procedure with respect to plaintiff's claims for injunctive relief, rule 23(b)(3) of the Federal Rules of Civil Procedure with respect to the claims for damages, and appointment of plaintiff as class representative and his counsel of record as class counsel; -- damages in the amount of monies paid for Guitar Hero III games for Wii; -- actual damages, statutory damages, punitive or treble damages, and such other relief as provided by the statutes cited; -- for pre-judgment and post-judgment interest according to proof; -- equitable relief in the form of restitution and/or disgorgement of all unlawful or illegal profits received by defendant as a result of the unfair, unlawful or illegal profits received by defendant as a result of the unfair, unlawful and/or deceptive conduct alleged; -- other appropriate injunctive relief; -- the costs of bringing this suit, including reasonable attorneys' fees; and -- all other relief to which plaintiff and members of the proposed class may be entitled at law or in equity. The suit is "Samuel Livingston et al. v. Activision, Inc., Case No. CVO7-08057," filed in the U.S. District Court for the central District of California. Representing plaintiffs are: Alan Himmelfarb KamberEdelson, LLC 2757 Leonis Blvd. Vernon, California 90058-2304 Phone: (323) 585-8696 E-mail: ahimmelfarb@kamberedelson.com Scott A. Kamber KamberEdelson, LLC 11 Broadway, 22nd Floor New York, NY 10004 Phone: (212) 920-3072 Fax: (212) 202-6364 E-mail: skamber@kamberedelson.com - and - Jay Edelson Ethan Preston KamberEdelson, LLC 53 West Jackson Boulevard, Suite 1530 Chicago, Illinois 60604 Phone: (312) 589-6370 E-mail: epreston@kamberedelson.com or jedelson@kamberedelson.com ALLIANCE SEMICONDUCTOR: Dismissed from U.S. SRAM Antitrust Suits ---------------------------------------------------------------- Alliance Semiconductor Corp. was dismissed without prejudice as a defendant in several U.S. antitrust class actions filed with regards to static random access memory (SRAM). In October and November 2006, the company and other companies in the semiconductor industry were named as defendants in a number of purported antitrust class actions filed in federal district courts in California and other states. The company has been served in some but not all of these actions. The lawsuits purport to state claims on behalf of direct and indirect purchasers of SRAM products of a conspiracy between manufacturers of SRAM chips to fix or control the price of SRAM during the period Jan. 1, 1998 through Dec. 31, 2005. Based on an agreement to preserve evidence and toll the statute of limitations until Jan. 10, 2009, the plaintiffs in the U.S. litigation voluntarily dismissed Alliance from the case without prejudice, according to the company's Nov. 14, 2007 Form 10-Q Filing with the U.S. Securities and Exchange Commission for the quarterly period ended Sept. 30, 2007. Alliance Semiconductor Corp. -- http://www.alsc.com-- is a provider of analog and mixed-signal products, high-performance memory products and connectivity and networking solutions for the communications computing, embedded, industrial and consumer markets. It operated in two segments: Memory and Non-Memory. AROTECH CORP: Consolidated Securities Complaint Filed in N.Y. ------------------------------------------------------------- The plaintiff in a securities fraud class action pending against Arotech Corp. in the U.S. District Court for the Eastern District of New York has filed a consolidated amended complaint in September. In May 2007, two purported class action complaints were filed in the U.S. District Court for the Eastern District of New York against us and certain of our officers and directors. These two cases were consolidated in June 2007. A similar case filed in the U.S. District Court for the Eastern District of Michigan in March 2007 was withdrawn by the plaintiff in June 2007. The complaint seeks class status on behalf of all persons who purchased our securities between Nov. 9, 2004 and Nov. 14, 2005, and alleges violations by us and certain of our officers and directors of Sections 10(b) and 20(a) of the Securities Exchange Act of 1934, and Rule 10b-5 thereunder, primarily related to the company's acquisition of Armour of America in 2005 and certain public statements made by with respect to its business and prospects during the Period. The Complaint also alleges that the company did not have adequate systems of internal operational or financial controls, and that our financial statements and reports were not prepared in accordance with GAAP and SEC rules. It seeks an unspecified amount of damages. A lead plaintiff has been named, and the plaintiff’s consolidated amended complaint was filed in September 2007. The company's motion to dismiss was due by the end of November 2007, but a decision on the motion is not expected until mid-2008. The suit is “Morris Akerman, et al. v. Arotech Corporation, et al., Case No. 07-CV-01838,” filed in the U.S. District Court for the Eastern District of New York under Judge Raymond J. Dearie. Representing the plaintiffs are: Stull, Stull & Brody 6 East 45th Street New York, NY 10017 Phone: 310.209.2468 Fax: 310.209.2087 E-mail: SSBNY@aol.com ARVIDA/JMB PARTNERS: Still Faces Camellia Island Project Lawsuit ---------------------------------------------------------------- Arvida/JMB Partners, L.P., its General Partner Arvida/JMB Managers, Inc., and certain related and unrelated parties remain defendants in a purported class action pending in the Circuit Court of the 17th Judicial Circuit in and for Broward County, Florida. The suit is “Rothal v. Arvida/JMB Partners Ltd. et al., Case No. 03-10709 CACE 12.” In this suit that was originally filed on or about June 20, 2003, plaintiffs purport to bring a class action allegedly arising out of construction defects occurring during the development of Camellia Island in Weston, which has approximately 150 homes. On May 9, 2005, plaintiffs filed a nine-count second amended complaint seeking unspecified general damages, special damages, statutory damages, prejudgment and post-judgment interest, costs, attorneys' fees, and such other relief as the court may deem just and proper. Plaintiffs complain, among other things, that the homes were not adequately built, that the homes were not built in conformity with the South Florida Building Code and plans on file with Broward County, Florida, that the roofs were not properly attached or were inadequate, that the truss systems and installation thereof were improper, and that the homes suffer from improper shutter storm protection systems. The Arvida defendants have filed their answer to the amended complaint. ALP Liquidating Trust, which engages in liquidating the assets of Arvida/JMB Partners, reported no development in the case in its Nov. 14, 2007 Form 10-Q Filing with the U.S. Securities and Exchange Commission for the quarterly period ended Sept. 30, 2007. ARVIDA/JMB PARTNERS: Still Faces Fla. Suit Over Defective Homes --------------------------------------------------------------- Arvida/JMB Partners, L.P. remains a defendant in a purported class action filed in the Circuit Court of the 17th Judicial Circuit in and for Broward County, Florida. The suit is "Osnovsky et al. v. Arvida Co., Arvida/JMB Partners, and Arvida Realty Co., Inc., Case No. 05015925." The Arvida defendants were served on March 1, 2006. Plaintiffs have filed a three count class action complaint for alleged violations of state building code, failure to disclose known defects in a residential real estate transaction, and negligence, all in connection with injuries allegedly sustained to their homes in the Ridges, a homeowners association in Weston that has about 1,500 units. Plaintiffs complain of alleged roofing defects in their homes, among other things. They seek unspecified damages and the opportunity to amend to add punitive damages. ALP Liquidating Trust, which engages in liquidating the assets of Arvida/JMB Partners, reported no development in the case in its Nov. 14, 2007 Form 10-Q Filing with the U.S. Securities and Exchange Commission for the quarterly period ended Sept. 30, 2007. ASTEA INT'L: Pa. Court Dismisses Securities Fraud Litigation ------------------------------------------------------------ The U.S. District Court for the Eastern District of Pennsylvania dismissed with prejudice a consolidated securities fraud class action filed against Astea International, Inc. On and shortly after April 6, 2006, certain purported shareholder class actions were filed in the U.S. District Court for the Eastern District of Pennsylvania against the company and certain of its directors and officers. The lawsuits, alleging that the company and certain of its officers and directors violated federal securities laws and state laws, relate to the company's March 31, 2006 announcement of the accounting restatement for overcapitalized software development costs during the first two quarters of 2005 and undercapitalized software development costs during the third quarter of 2005. Pursuant to a stipulation and order of the court entered July 12, 2006, the putative class actions were consolidated, certain persons were appointed as lead plaintiffs, and a consolidated amended complaint was filed on Sept. 11, 2006. On Aug. 9, 2007, the court dismissed the Consolidated Amended Complaint, without prejudice, and granted plaintiffs leave to file an amended Consolidated Amended Complaint. The plaintiffs did not file an Amended Complaint, and instead agreed to a joint stipulation for dismissal provided Astea did not seek a recovery of costs against the plaintiffs. On Aug. 21, 2007, the court dismissed the Consolidated Amended Complaint with prejudice, according to the company's Nov. 14, 2007 Form 10-Q Filing with the U.S. Securities and Exchange Commission for the quarterly period ended Sept. 30, 2007. The suit is “Shanahan v. Astea International Inc. et al., Case No. 2:06-cv-01467-WY,” filed in the U.S. District Court for the Eastern District of Pennsylvania under Judge William H. Yohn, Jr. Representing the plaintiffs are: David Felderman Spector, Roseman & Kodroff 1818 Market Street, Suite 2500 Philadelphia, PA 19103 Phone: 215-496-0300 E-mail: dfelderman@srk-law.com Andrew N. Friedman Cohen, Milstein, Hausfeld, and Toll 1100 New York Avenue N.W., West Tower, Suite 500 Washington, DC 20005-3964 Phone: 202-408-4600 Fax: 202-408-4699 - and - Michael D. Gottsch Chimicles & Tikellis, LLP 361 West Lancaster Avenue Haverford, PA 19041 Phone: 610-642-8500 E-mail: michaelgottsch@chimicles.com Representing the defendants is: Robert L. Hickok Pepper Hamilton, LLP 3000 Two Logan Sq., 18TH & Arch Sts. Philadelphia, PA 19103-2799 Phone: 215-981-4583 E-mail: hickokr@pepperlaw.com AUTOMOBILE INDUSTRY: Cal. Wins Favorable Ruling in Air Law Case --------------------------------------------------------------- Judge Anthony W. Ishii of the U.S. District Court for the Eastern District of California ruled in favor of the state of California and environmental groups Environmental Defense, Natural Resources Defense Council and Sierra Club in a case brought by the automobile industry seeking to strike down the state's greenhouse gas law. This is an action for injunctive and declaratory relief by Central VAlley Chrysler-Jeep, Inc. et al. and Plaintiff- intervenors Association of International Automobile Manufacturers against defendant James Goldstone, in his official capacity as Executive Director of the California Air Resources Control Board and defendant-intervenors Sierra Club, et al. Plaintiffs filed this action on December 7, 2004. The first amended complaint alleged five claims for relief; preemption under Energy Policy and Conservation Act (EPCA), preemption under section 209(a) of the Clean Air Act, preemption under United States foreign policy, violation of the Dormant Commerce Clause, and violation of the Sherman Antitrust Act. The federal Clean Air Act allows California to set stricter emissions rules for automobiles than the federal government. California exercised this authority by enacting AB 1493 and the automobile industry challenged the rules issued under AB 1493 by filing the lawsuit. The judge issued a 57 page decision in “Central Valley Chrysler- Jeep, Inc. v. Goldstone,” ruling that the federal law establishing automobile fuel economy standards (EPCA) does not prevent California from adopting and enforcing a greenhouse gas emissions reduction law. In so doing he revised a prior ruling in the case, stating that a recent Supreme Court decision on global warming required him now to hold that the Department of Transportation must conform federal fuel economy standards to be consistent with greenhouse gas pollution standards adopted either by the U.S. EPA or by California. Judge Ishii's opinion states “Given the level of impairment of human health and welfare that current climate science indicates may occur if human-generated greenhouse gas emissions continue unabated, it would be the very definition of folly if EPA were precluded from action simply because the level of decrease in greenhouse gas output is incompatible with existing mileage standards under EPCA.” The suit is “Central Valley Chrysler-Jeep, Inc. v. Goldstone, Case No. CV F 04-6663 AWI LJO,” filed in the United States District Court for the Eastern District of California. The three environmental groups were represented in the California and Vermont cases by: Matt Pawa Law Offices of Matthew F. Pawa, P.C. - Boston Phone: 617 641-9550 (office) or 617 233-3773 (cell) BRAVO! BRANDS: Vianale Expands Purpored Securities Class Period --------------------------------------------------------------- The law firm of Vianale & Vianale LLP filed a class action on December 12, 2007, alleging an expanded class period, on behalf of purchasers of the securities of Bravo! Brands, Inc. (PINKSHEETS: BRVO) between March 22, 2005 and May 15, 2007. The complaint expands the prior Class Period and alleges that Bravo's financial statements and U.S. Securities and Exchange Commission filings were false beginning at least as early as March 22, 2005. It alleges that Bravo CEO Roy G. Warren and Chief Accounting Officer Tommy E. Kee violated the Securities Exchange Act of 1934. During the Class Period, Bravo allegedly concealed that its sole distributor, Coca Cola Enterprises, Inc., had drastically cut its demand for Bravo's milk-drinks. (Bravo sold its products under the brand names "Slammers" and "Bravo.") Bravo also failed to timely disclose that it had defaulted on interest payments to senior note holders. Bravo announced several restatements to its financial. Bravo falsely told investors on April 3, 2007, that it had expanded its drink products by introducing the first milk-based sports drink. Only one month later, Bravo announced that it would substantially reduce its workforce, that it would not roll out brands into new channels of distribution, and that its sales with CCE had declined substantially in April and May 2007. On May 15, 2007, the last day of the Class Period, Bravo announced that it had recognized a $17.6 million non-cash impairment charge during the quarter ended March 31, 2007. On September 21, 2007, Bravo filed for bankruptcy. Interested parties may move the court no later than December 17, 2007, for lead plaintiff appointment. For more information, contact: Kenneth J. Vianale, Esq. Julie Prag Vianale, Esq. Vianale & Vianale LLP 2499 Glades Road, Suite 112 Boca Raton, FL 33431 Phone: 888-657-9960 (Toll Free) or 561-392-4750 CARROLS CORP: N.Y. Court Mulls Motion in Former Workers' Lawsuit ---------------------------------------------------------------- The U.S. District Court for the Western District of New York has yet to rule on certain motions made in a purported class action against Carrols Corp., according to Carrols Restaurant Group, Inc.’s Nov. 9, 2007 Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarterly period ended Sept. 30, 2007. On Nov. 30, 2002, four former hourly employees of the company commenced a lawsuit, “Dawn Seever, et al. v. Carrols Corp.” The lawsuit alleges, in substance, that Carrols violated certain minimum wage laws under the federal Fair Labor Standards Act and related state laws by requiring employees to work without recording their time and by retaliating against those who complained. Plaintiffs seek damages, costs and injunctive relief. They also seek to notify, and eventually certify, a class consisting of current and former employees who, since 1998, have worked, or are working, for Carrols. As a result of the July 21, 2005 status conference, the parties agreed to withdraw plaintiff's motions to certify and for national discovery, and defendant's motion to disqualify counsel and related motions, to allow both sides limited additional discovery. Carrols has since filed a motion for summary judgment as to the existing plaintiffs that the court has under consideration. On Jan. 19, 2007, plaintiffs re-filed the Motion to certify and for national discovery. Carrols has opposed such Motions. Carrols has also moved to disqualify the Plaintiffs from representing the class and to strike the purported evidence presented in support of the motion to certify. The suit is “Dawn Seever, et al. v. Carrols Corp., Case No. 6:02-cv-06580-DGL-MWP,” filed in the U.S. District Court for the Western District of New York under Judge David G. Larimer with referral to Judge Marian W. Payson. Representing the plaintiffs is: Patrick J. Solomon, Esq. Dolin, Thomas & Solomon, LLP 693 East Avenue Rochester, NY 14607 Phone: 585-272-0540 Fax: 585-272-0574 E-mail: psolomon@theemploymentattorneys.com Representing the defendants is: Helen N. Baker, Esq. Freeborn & Peters 311 South Wacker Drive, Suite 3000 Chicago, IL 60606 Phone: 312-360-6256 Fax: 312-360-6995 E-mail: hbaker@freebornpeters.com CEC ENTERTAINMENT: Cal. Court Mulls Motion to Certify FACTA Suit ---------------------------------------------------------------- The U.S. District Court for the Central District of California has yet to rule on a motion seeking class-action status to a consolidated class action, alleging violations of the Fair and Accurate Credit Transactions Act. Blanco Litigation On Jan. 23, 2007, a purported class action against the Company, entitled, “Blanco v. CEC Entertainment, Inc., et al., Cause No. CV-07-0559,” was filed in the U.S. District Court for the Central District of California. The Blanco Litigation was filed by an alleged customer of one of the Company’s Chuck E. Cheese’s restaurants purporting to represent all individuals in the U.S. who, on or after Dec. 4, 2006, were knowingly and intentionally provided at the point of sale or transaction with an electronically-printed receipt by the Company that was in violation of U.S.C. Section 1681c(g) of FACTA. The Blanco Litigation is not seeking actual damages, but is only seeking statutory damages for each willful violation under FACTA. Price Litigation On Feb. 8, 2007, a purported class action against the Company, entitled, “Price v. CEC Entertainment, Inc., et al., Cause No. CV-07-00923,” was filed in the U.S. District Court for the Central District of California. The Price Litigation was filed by an alleged customer of one of the Company’s Chuck E. Cheese’s restaurants purporting to represent the following two classes of individuals in the U.S.: -- all persons to whom, on or after Jan. 1, 2005, the Company provided, through use of a machine that was first put into use by the Company on or after Jan. 1, 2005, an electronically printed receipt which was in violation of U.S.C. Section 1681c(g) of FACTA; and -- all persons to whom, on or after Dec. 4, 2006, the Company provided, through use of a machine that was being used by the Company before Jan. 1, 2005, an electronically printed receipt which was in violation of FACTA. The Price Litigation was not seeking actual damages, but was only seeking statutory damages for each willful violation under FACTA and a permanent injunction enjoining the Company from engaging in unlawful violations of FACTA. The Price Litigation was consolidated into the Blanco Litigation while it was still in its preliminary stages and before discovery had begun. The post-consolidation Blanco Litigation is still in its preliminary stages and discovery has not yet been completed. Both parties have served and answered written discovery. Also, CEC deposed Plaintiff Blanco on Aug. 5, 2007. Plaintiff Blanco’s attorneys, however, have not deposed any CEC representatives. On Oct. 1, 2007, Plaintiff Blanco filed her Motion for Class Certification. CEC is currently preparing its response thereto. Accordingly, the Court has not yet ruled on whether Plaintiff Blanco’s proposed class should be certified. CEC Entertainment, Inc. -- http://www.chuckecheese.com-- is engaged in the family restaurant/entertainment center business. The Company operated, as of Dec. 31, 2006, 484 Chuck E. Cheese's restaurants. In addition, as of Dec. 31, 2006, franchisees of the Company operated 45 Chuck E. Cheese's restaurants. Chuck E. Cheese's restaurants offer a variety of pizzas, a salad bar, sandwiches, appetizers and desserts, and feature musical and comic entertainment by robotic and animated characters, family oriented games, rides and arcade-style activities. The Company and its franchisees operate in a total of 48 states and five foreign countries/territories. DELTA FINANCIAL: Denied Appeal of Labor Suit Summary Judgment ------------------------------------------------------------- Delta Financial Corp., owner of Fidelity Mortgage Inc., was barred from filing an interlocutory appeal on the order issued March by the Honorable Gary L. Lancaster of the United States District Court for the Western District of Pennsylvania, Bankruptcy Law360 reports. Judge Lancaster's previous order had partly granted and denied requests for summary judgment by both Fidelity and Doug Pontius, plaintiff, the report relates. The order, according to the report, was based on Magistrate Judge Lisa Pupo Lenihan's recommendation to deny Fidelity's request because the Supreme and Circuit Courts and the Department of Labor do not consider companies in the financial sector as part of an exemption in the retail or service enterprise. FLSA Violation Suit In November 2004, the company received notice that it has been named in a lawsuit styled as a collective action filed in the Western District of Pennsylvania. The suit alleges that the company's subsidiary, Fidelity Mortgage, now a division of the company's other subsidiary, Delta Funding Corporation, did not pay its loan officers overtime compensation and minimum wage in violation of the Federal Fair Labor Standards Act. The complaint seeks: (1) an amount equal to the unpaid wages at the applicable overtime rate; (2) an amount equal to the minimum wages at the applicable minimum wage; (3) an equal amount as liquidated damages; (4) costs and attorneys' fees; (5) leave to add additional plaintiffs; and (6) leave to amend to add claims under applicable state laws. The company filed an answer and discovery has commenced. In April 2005, the plaintiff filed his motion for conditional class certification and in May 2005, Fidelity filed its opposition to that motion. In June 2005, the Magistrate Judge issued a report and recommended that the plaintiff's motion for conditional class certification be granted and that plaintiff's motion to authorize judicial notice be granted. In July 2005, Fidelity filed with the District Court its objections to the Magistrate Judge's recommendation and the plaintiff filed its opposition to the objections. In July 2005, the District Court upheld the Magistrate Judge's report and recommendation. Any potential class members who desired to join the collective action were provided an opportunity to do so during an "opt-in" period that ended in October 2005. Approximately 180 individuals, virtually all of whom are former employees, are plaintiffs in the collective action. In April 2006, the plaintiffs filed a motion for summary judgment. By agreement in June 2006, the Court stayed the action while the parties engaged in non-binding mediation, and plaintiffs' motion for summary judgment was withdrawn without prejudice to it being re-filed. The matter was not resolved through mediation, the stay was lifted in August 2006, the plaintiffs' motion was re- filed and the company filed its opposition to the motion and a cross-motion for partial summary judgment. In September 2006, the plaintiffs filed their papers in response to the company's opposition to their motion and replied to the company's cross- motion. In October 2006, the company filed reply papers to the plaintiffs' opposition to the company's cross-motion. In March 2007, the Magistrate Judge rendered a report and recommendation that the plaintiffs' motion for summary judgment be granted, and the company's motion denied, as to the company's entitlement to a retail or service establishment exemption under the FLSA; that plaintiffs' motion be denied as to: (a) the company's entitlement to an administrative employee exemption under the FLSA; and (b) plaintiffs' entitlement to liquidated damages; and the company's motion be granted as to the sufficiency of the employees' compensation under the salary basis test, but denied as to the remaining two conditions of an administrative employee exemption. In April 2007, the company filed objections to the Magistrate Judge's report and recommendation, since it did not recommend the granting of the company's cross-motion for partial summary judgment, and the plaintiffs filed their opposition to the company's objections. In May 2007, the company filed a reply to the plaintiffs' opposition to the company's objections, on which the District Court issued an order adopting the Magistrate Judge's report and recommendation in May 2007. In July 2007, the company filed a motion for certification of an interlocutory appeal from the District Court's May 2007 order and the plaintiffs filed their opposition papers in July 2007; and the company filed a reply papers in August 2007. About Delta Financial Founded in 1982, Delta Financial Corporation (NASDAQ: DFC) -- http://www.deltafinancial.com/-- is a Woodbury, New York-based specialty consumer finance company that originates, securitizes and sells non-conforming mortgage loans. On Dec. 7, 2007, Delta Financial Corporation provided an update on Dec. 6, 2007, of its financial condition and current plans, including a possible filing of chapter 11 bankruptcy and an event of default under its warehouse facilities. DOMTAR INC: Settles Carbonless Sheets Price Fixing Lawsuits ----------------------------------------------------------- Domtar Inc. settled two purported class actions in Canada over alleged damages relating to a conspiracy to fix prices of carbonless sheets, according to the company's Nov. 9, 2007 Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarterly period ended Sept. 30, 2007. Quebec Litigation Domtar Inc. is the subject to a motion by Joachim Laferriere Electricien Inc., filed in the Quebec Superior Court on January 9, 2006, for authorization to bring a class action against Domtar Inc. and others for alleged damages relating to a conspiracy to fix prices of carbonless sheets during the period of January through December 2000 in the Province of Quebec, Canada. The claim seeks estimated compensatory damages in the amount of $50 million (CAN$50 million) plus estimated exemplary damages in the amount of $1 million to $5 million (CAN$1 million to CAN$5 million). Ontario Litigation Domtar is also subject to a motion by McLay & Company Inc. filed in Ontario Superior Court on January 11, 2006 for authorization to bring a class action against Domtar Inc. and others, for alleged inflated prices of carbonless sheets paper during the period of October 1999 through September 2000 in the Province of Ontario, Canada. These class actions have been settled in principle for an insignificant amount and are subject to Court approval. Domtar Corp. -- http://www.domtar.com-- formerly Weyerhaeuser TIA, Inc., is an integrated producer of uncoated freesheet paper and manufacturer of papergrade market pulp in North America. FAR EAST BROKERS: Recalls Fishing Games for Lead Standard Breach ---------------------------------------------------------------- Far East Brokers and Consultants Inc., of Jacksonville, Fla., in cooperation with the U.S. Consumer Product Safety Commission, is recalling about 14,000 Fishing Games. The company said the recalled game has parts that contain excessive levels of lead, violating the federal lead paint standard. No injuries have been reported. The recalled Fishing Game contains a fishing pole, one large battery operated fish, and three small wind-up fish. The UPC #011546208270 and product #25741 are printed on the product's packaging. These recalled fishing games were manufactured in China and are being sold at Grand Union Family Markets, Southern Family Markets, P&C Stores, Publix Super Markets, and Food Lion stores nationwide from October 2007 through November 2007 for about $10. Picture of recalled fishing games: http://www.cpsc.gov/cpscpub/prerel/prhtml08/08130.jpg Consumers are advised to immediately take the product away from children and return it to the store where purchased for a full refund. For additional information, contact Far East Brokers and Consultants toll-free at (877) 695-8354 between 9 a.m. and 5 p.m. ET Monday through Friday, or visit the firm's Web site: http://www.fareastbrokers.com/ FLAT GLASS MAKERS: Face Suit in Penn. for Alleged Price Fixing -------------------------------------------------------------- Guardian Industries Corp., which controls 8 percent of the U.S. market for flat glass, is facing a class-action complaint filed in the U.S. District Court for the Eastern District of Pennsylvania, accusing it of leading an antitrust conspiracy to fix prices for flat glass, particularly automotive glass, the CourtHouse News Service reports. Other named defendants: -- Guardian Fabrication Inc., -- Lake Guardian Walled Fabrication Corp., -- Guardian Glass Company, -- Pilkington Group Limited, -- Pilkington PLC, -- Pilkington North America Inc., -- Pilkington Holdings Inc., -- Libbey-Owens-Ford Co., -- NSG UK Enterprises Limited, -- Nippon Sheet Glass Co. Limited, -- Compagnie de Saint-Gobain, -- Saint-Gobain Corporation, -- Certainteed Corporation, -- Saint-Gobain Glass Corporation, -- Saint-Gobain Glass Exprover North America Corporation, -- Asahi Glass Company Limited, -- AGC Flat Glass, -- AGC Flat Glass North America, -- AGC Flat Glass Europe, -- AGC America Inc., -- AGC Interedge Technologies Inc., and -- AMA Glass Corporation Named plaintiff John Draper d/b/a Draper's Auto Glass brings this action under the federal antitrust laws, Section 1 of the Sherman Antritust Act of 1890, 15 USC Section 1, and Section 4 of the Clayton Antitrust Act of 1914, 15 U.S.C. Section 15. This case arises from an international cartel among the world's leading manufacturers of flat glass to fix, raise, maintain, and/or stabilize prices of flat glass in the worldwide flat glass market, including in the the United States. Flat glass includes all unfabricated and fabricated glass products manufactured through the "float process," whether transparent, opaque, translucent, reinforced or otherwise, formed in a flat shape, used for cutting into window panes, or glass formed flat and subsequently bent or curved, used for fabrication into automobile windshields. Plaintiff brings this action on behalf of all persons or entities who purchased flat glass in the United States directly from the defendants or their co-conspirators, at any time from at least Jan. 1, 2004 to Dec. 31, 2005, the exact date being unknown. He wants the court to rule on: (a) whether defendants conspired, contracted or combined with others, for the purpose of and with the effect of raising, fixing, maintaining, pegging, or stabilizing the price of flat glass which was purchased by the class; (b) whether defendants undertook actions to conceal the unlawful conspiracies, contracts or combinations described; and (c) whether defendants' conduct violated the relevant federal antitrust laws and caused injury to the business and property of plaintiff and the class and, if so, the proper measure of damages. Plaintiff prays for relief as follows: -- that the court determine that this action may be maintained as a class action under Rules 23(b)(2) and (b)(3) of the Federal Rules of Civil Procedure, that plaintiff be appointed as a class representative and that plaintiff's counsel be appointed as counsel for the class; -- that the unlawful contract, combination and conspiracy alleged in Count I be adjudged and decreed to be an unreasonable restraint of trade or commerce in violation of Section 1 of the Sherman Act; -- that plaintiff and the class recover compensatory damages, as provided by law, determined to have been sustained as to each of them, and that judgment be entered against defendants on behalf of plaintiff and each and every member of the class; -- that plaintiff and the class recover treble damages, as provided by law; -- that plaintiff and the class recover their costs of the suit, including attorney's fees, as provided by law; -- that defendants be enjoined from engaging in the anticompetitive and unlawful acts described; -- such further relief as the court may deem just and proper. The suit is "John Draper et al. v. Guardian Industries Corp., et al.," filed in the U.S. District Court for the Eastern District of Pennsylvania. Representing plaintiffs are: Nicholas E. Chimicles Joseph G. Saudler Daniel B. Scott Benjamin F. Johns Chimicles & Tikellis LLP One Haverford Centre 361 West Lancaster Avenue Haverford, PA 19041 Phone: (610) 642-8500 Fax: (610) 649-3633 Bernard Persky Hollis L. Salzman Kellie Lerner Rebecca Cohen Morissa Falk Labaton Sucharow LLP 140 Boradway New York, NY 1005 Phone: (212) 907-0700 Fax: (212) 818-0477 - and - Michael Goldberg Glancy Binkow & Goldberg LLP 1801 Avenue of the Stars, Suite 311 Los Angeles, CA 90067 Phone: (310) 201-9150 Fax: (310) 201-9160 ILLINOIS: Tazewell Sheriff Sued for Denying Services to Inmate -------------------------------------------------------------- A federal inmate filed a suit against Tazewell County Sheriff Bob Huston in October claiming a host of deprivation, it emerged in a report by Kevin Sampier of Peoria Journal Star. Anthony L. Fletcher claimed Sheriff Huston denied him and other inmates dental care, access to exercise equipment, mental health treatment, law books and legal materials, and charged too much for haircuts and snacks at the commissary, according to the report. The suit came before a judge in November. It was mentioned in Mr. Sampier's report about a suit Mr. Fletcher filed against Tazewell County jailer Richard Brock for alleged harassment. Mr. Fletcher is representing himself in both cases. Mr. Fletcher is awaiting trial after being indicted in March by a federal grand jury on charges of possession and production of child pornography, according to the report. He is being housed in Tazewell County for the federal government. He was convicted last year in McLean County for aggravated criminal sexual abuse and possessing child porn, receiving a 29- year sentence in July, according to the report. Tazewell County State's Attorney Stewart Umholtz filed a motion earlier this month asking that the suit against Sheriff Huston be dismissed for several reasons, including failure by Mr. Fletcher to file proper notices to the sheriff. Mr. Fletcher has filed dozens of motions in his federal case that allege constitutional violations by attorneys, court reporters and jailers in other areas. Some have been dismissed, according to the report. Both cases were postponed Friday until a later date. IRONWOOD COMMS: Faces Wage, Hour Laws Violations Suit in Calif. --------------------------------------------------------------- Ironwood Communications, Inc., a subsidiary of 180 Connect, Inc., faces a purported class action in state court in Los Angeles, California, brought by current and former employees. The suit was filed on October 2007. Its claims relate to alleged violations of California wage and hour laws. The purported class action period allegedly relates back to October 2003, although the class period may be limited to after June 30, 2004 by virtue of settlement of previous wage and hour class action litigation in California. 180 Connect, Inc. -- http://www.180connect.net-- is one of North America's largest provider of installation, integration and fulfillment services to home entertainment and communications, enterprise data and home integration service industries. The Group provides these services in the U.S. It employs technicians in each of its 82 locations to ensure the timely completion of its services. KMART: Recalls Pants with Drawstring Posing Entrapment Risk ----------------------------------------------------------- Kmart, in cooperation with the U.S. Consumer Product Safety Commission, is recalling about 13,000 basic editions-brand girls' clothing sets imported by Millennium Apparel Group, of New York, N.Y. The company said the recalled pants have a drawstring at the waist that can pose an entrapment or entanglement hazard to children. No incidents/injuries have been reported so far. The recalled two-piece clothing set has olive-colored knit pants with a fully-tunneled waist drawstring and a pink short- sleeved top with necktie. The set was sold in the following girls' sizes: 4/5, 6/6X, 7/8, and 10/12. The clothing were made in Pakistan and sold in Kmart stores nationwide during July 2007 for about $17 per set. Consumers are advised to immediately remove the drawstrings to eliminate the hazard. For additional information, contact Kmart at (800) 659-7026 between 7 a.m. and 9 p.m. CT Monday through Saturday, or visit http://www.kmart.com To see this recall on CPSC's web site, including pictures of the recalled product, please go to: http://www.cpsc.gov/cpscpub/prerel/prhtml08/08117.html LONGWOOD MANAGEMENT: Nursing Home Workers to Recoup $4M in Wages ---------------------------------------------------------------- Nursing home workers from 32 facilities across Southern California won a $4 million judgment, after settling a class action filed against their employer, Longwood Management Corp. Forced to work through meal periods and breaks without compensation, the hourly employees sued Longwood in 2003 for wage and hour law violations. The settlement is a huge win for nursing home employees and patients alike, making it clear to administrators that they will not get away with exploiting workers, and they must make proper staffing levels a priority in their homes to ensure quality patient care. The judgment also means renewed confidence and dignity for employees who fear losing their job if they speak up when administrators violate the law. SEIU Healthcare – United Long-Term Care Workers’ Union represents about 400 employees in four of the Longwood facilities. Enriqueta Hernarndez , a union member and CNA at Montrose Healthcare, called the judgment “monumental.” “I am happy because this proves the law is working for us,” Ms. Hernandez said. Hernandez has been working at the Longwood facility since before the suit began and will receive the maximum payout from the settlement. “These problems have been going on for a long time, but I know that if we join together and fight we can win.” “If I wasn’t for the courage and perseverance of the plaintiffs who stepped forward we never would have got what we deserved,” said Dori Camacho, a CNA at Intercommunity Healthcare and Rehabilitation Center. “It just shows that if we stick together, we can get fair treatment and justice.” MID-CENTURY INSURANCE: Allowed to Directly Collect Authority Fee ---------------------------------------------------------------- The Texas Supreme Court overturned a ruling that declared as illegal the manner by which Mid-Century Insurance Co. collects Authority fees from motorists, Rob Luke of Legal News Line reports. Shefqet Ademaj and others brought a class action against Mid- Century Insurance Company of Texas and Texas Farmers Insurance Company seeking a declaratory judgment on the manner in which Mid-Century could lawfully recoup the legislatively imposed Authority fee from insureds. The Department of Insurance (DoI) has allowed Mid-Century to directly charge motorists an Authority fee. Later, Ademaj argued successfully at trial and on appeal that Mid-Century collected the fee illegally because it was not included in the company's rate filing with DoI commissioner. On appeal to the Supreme Court, Justice Paul W. Green wrote for the majority, "Because the commissioner made a reasonable determination that the Authority fee should be charged directly and not as part of the Article 5.101 premium, we hold that Mid- Century properly recouped the fee from Ademaj." The suit is "Mid-Century Insurance Co. v. Shefqet Ademaj (docket# 05-0016)." NATIONAL BEEF: 8th Circuit Mulls “Schumacher” Defendants' Appeal ---------------------------------------------------------------- The U.S. Court of Appeals for the Eight Circuit has yet to rule on an appeal for favorable ruling by defendants in the purported class action, “Schumacher v. Tyson Foods, et al.” On July 1, 2002, a lawsuit was filed against: -- Farmland National Beef Packing Co., L.P. (FNBPC or the predecessor to National Beef Packing Co., LLC (NBP)), -- ConAgra Beef Co., -- Tyson Foods, Inc., and -- Excel Corp. It was filed in the U.S. District Court for the District of South Dakota, seeking certification of a class of all persons who sold cattle to the defendants for cash, or on a basis affected by the cash price for cattle, during the period from April 2, 2001 through May 11, 2001 and for some period up to two weeks thereafter. Three named plaintiffs on behalf of a putative nationwide class filed the case. The complaint alleged that the defendants, in violation of the Packers and Stockyards Act of 1921, knowingly used, without correction or disclosure, incorrect and misleading boxed beef price information generated by the U.S. Department of Agriculture to purchase cattle offered for sale by the plaintiffs at a price substantially lower than was justified by the actual and correct price of boxed beef during this period. Plaintiffs also sought recovery against all defendants under a theory of unjust enrichment. The case was certified as a class-action matter in June of 2004. The plaintiffs claimed damages against FNBPC in the amount of approximately $4.5 million plus prejudgment interest, attorneys' fees and court costs. The claim is subject to reduction in an unknown amount by the number of class members who have opted out of the class. Trial began March 31, 2006. On April 13, 2006, the jury returned a verdict in favor of FNBPC but not against the other defendants. The defendants found liable filed post-trial motions for judgment as a matter of law, which were denied. The plaintiffs did not file a post-trial motion seeking to set aside the jury's verdict for FNBPC. The court has not yet entered a final judgment or appealable order and, until it does, the time for an appeal does not begin to run. On April 13, 2006, the jury returned a verdict in favor of FNBPC but against the other defendants. The other defendants have filed an appeal in the U.S. Court of Appeals for the Eighth Circuit. according to its Nov. 14, 2007 Form 10-K Filing with the U.S. Securities and Exchange Commission for the fiscal year ended Aug. 25, 2007. according to the company’s July 10, 2007 Form 10-K Filing with the U.S. Securities and Exchange Commission for the fiscal year ended April 26, 2007. The suit is “Schumacher, et al. v. IBP, Inc., et al., Case No. 1:02-cv-01027-CBK,” filed in the U.S. District Court of South Dakota under Judge Charles B. Kornmann. Representing the plaintiffs are: Elizabeth J. Anderson, Esq. David F. Herr, Esq. Maslon, Edelman, Borman & Brand 3300 Wells Fargo Center, 90 S. 7th St. Minneapolis, MN 55402-4140 Phone: (612) 672-8200 Fax: (612) 672-8397 Representing the defendants are: William H. Baumgartner, Jr., Esq. Sidley Austin LLP One South Dearborn Street Chicago, IL 60603 Phone: (312) 853-7000 Fax: (312) 853-7036 E-mail: wbaumgartner@sidley.com - and - Patrick E. Brookhouser, Jr., Esq. McGrath North Mullin & Kratz, PC LLO 1601 Dodge St., Suite 3700, First Natl. Tower Omaha, NE 68102-1627 Phone: (402) 341-3070 Fax: (402) 341-0216 NBC UNIVERSAL: "Lucky X" Game Illegal, Calif. Lawsuit Alleges ------------------------------------------------------------- NBC Universal, Inc. is facing a class-action complaint filed Dec. 11 in the U.S. District Court for the Central District of California, claiming its "Lucky X" game on its show, "America's Got Talent," is illegal gambling, the CourtHouse News Service reports. Named plaintiffs Michael Glass and David Mathews claim defendants engage in illegal gambling activity through their operation of the "Lucky X" game offered in connection with the NBC television show "America's Got Talent. Lucky X involves the three elements of illegal gambling: consideration, chance and prize, the suit claims. Plaintiffs bring this nationwide class action, pursuant to Rule 23 of the Federal Rules of Civil Procedure, on behalf of all persons in the United States who paid or incurred premium text message charges in connection with entrance into Lucky X, and who did not win a prize. They want the court to rule on: (a) whether Lucky X constitutes illegal gambling; (b) the extent of each defendant's participation in conducting the game; (c) whether defendants' conduct violates California Business and Professions Code Section 17200; (d) whether plaintiffs and the class are entitled to recover the premium text messaging fees paid to enter Lucky X; (e) the extent to which plaintiffs and the class are entitled to damages, restitution, or other monetary remedies, as result of the injuries suffered; and (f) whether defendants should be enjoined from continuing to promote and conduct Lucky X. Plaintiffs pray for relief and judgment as follows: -- for an order certifying the class; -- for judgment in favor of plaintiffs and the class for restitution; -- for preliminary and permanent injunctions against conducting Lucky X and any other equitable remedies that may protect the class; -- for a declaration that Lucky X constitutes illegal gambling; -- for imposition of a constructive trust on defendants for the benefit of plaintiffs and the class; -- for reasonable attorneys' fees and costs to class counsel as may be just and proper; and -- for such other and further relief as may be just and proper. The suit is "Michael Glass et al. v. NBC Universal, Inc., Case No. CV07-08044," filed in the U.S. District Court for the Central District of California. Representing plaintiffs are: Jeff S. Westerman Sabrina S. Kim Michiyo Michelle Furukawa Milberg Weiss LLP One California Plaza 300 S. Grand Avenue, Suite 3900 Los Angeles, CA 90071 Phone: (213) 617-1200 Fax: (213) 617-1975 E-mail: jwesterman@milbergweiss.com or skim@milbergweiss.com or mfurukawa@milbergweiss.com Michael C. Spencer Milberg Weiss LLP One Pennsulvania Plaza New York, NY 10119-0165 Phone: (212) 594-5300 Fax: (212) 868-1229 E-mail: mspencer@milbergweiss.com Paul R. Kiesel Kiesel Boucher Larson LLP 8648 Wilshire Boulevard Beverly Hills, CA 90211 Phone: (310) 854-4444 Fax: (310) 854-0812 E-mail: kiesel@kbla.com - and - William A. Pannell William A. Pannell, P.C. 3460 Kingsboro Road, N.E., Suite TH5 Atlanta, GA 30326 Phone: (404) 353-2283 E-mail: billpannell@mindspring.com OHIO: Settlement Reached in Voyeurism Suit Against Dead Landlord ---------------------------------------------------------------- Judge Harry J. Sargeant, Jr. granted preliminary approval to a settlement of a case involving a deceased Gibsonburg, Ohio landlord accused of illegally taking videos of his tenants, The (Toledo, OH) Blade reports. Last year, a motion for summary judgment in a case of deceased James Rogers was filed in Sandusky County Common Pleas Court (Class Action Reporter, Dec. 21, 2006). Samuel Bolotin, a Toledo attorney representing several of the plaintiffs in the case, said the motion is essentially asking the court to rule that Mr. Rogers' estate is liable in the case, according to the report. The motion argues that plaintiffs' privacy was violated by the defendant's act. It stated that the accused installed surveillance equipment in a property he owned at 114 and 118 W. Madison St., and at two apartments at 401 E. Stevenson St. The taping "breached the covenants of quiet enjoyment that were implied into the leases entered into between James Rogers and each plaintiff," according to the motion. The documents allege Mr. Rogers was taping people using those properties as early as May 1993. Mr. Rogers shot himself when police investigated his properties in early 2002. According to the motion, Gibsonburg police confiscated 237 videotapes and 83 pieces of electronic surveillance equipment after the search. Mr. Bolotin then said that the motion is not asking the court to determine any monetary damages at this stage. Recently, attorneys reportedly announced a proposed deal that would involve a $100,000 payout to the plaintiffs, along with payouts of at least $100 to others who could prove they were videotaped in the apartments of the landlord. Judge Sargeant set a hearing for Jan. 7 when those who appeared in the tapes can voice their opinions on the settlement proposal. The proposal also calls for as much as $65,000 of the settlement money to go toward attorney fees and other legal expenses. Joseph Albrechta, attorney for the plaintiffs, said that once a final settlement is approved, he will request that all the videotapes be destroyed. For more details, contact: Samuel G. Bolotin, Esq. Bolotin Co., LPA, 4349 Talmadge Road, Toledo, OH 43623-3527 Phone: (419) 472-1900 Joseph F. Albrechta, Esq. Albrechta and Coble, 2255 Christy Road, Freemont, OH 43420 Phone: (419) 332-9999 Fax: (419) 332-4404 PROFESSIONAL INVESTMENT: NSW Court Blocks Westpoint-Related Suit ---------------------------------------------------------------- The New South Wales Supreme Court ruled that a lawsuit filed by 51 people who lost money in the collapse of Westpoint could not proceed with a class action for damages, the Sydney Morning Herald reports. Chief Justice Peter Young said there was insufficient common interest among all 51 plaintiffs for the case to be tried as a class action; lead plaintiff, Bruce Jameson, may sue a Westpoint company, Professional Investment Services, as an individual. Slater & Gordon filed the suit in September 2006 on behalf of all 51 members of the group who advanced loans to Ann Street Mezzanine and received promissory notes in return. They allege that Professional Investment Services told them the notes were guaranteed by Westpoint. The suit is funded by listed litigation funder IMF (Australia) Ltd. The judge also ruled that the court could not hear a class action that limited the plaintiffs to clients of these two firms. About Westpoint Headquartered in Perth, Western Australia, the Westpoint Group -- http://westpoint.com.au/-- is engaged in property development and owns or manages retail and commercial properties with a total value of over AU$300 million. The Group's troubles began in 2005 when the Australian Securities and Investments Commission commenced investigations on 160 companies within the Westpoint Group. ASIC's investigation led to ASIC initiating action in late 2005 in the Federal Court of Australia against a number of mezzanine companies in the Westpoint Group, including winding up proceedings. ASIC contends that Westpoint projects are suffering from significant shortfall of assets over liabilities so that hundreds of investors are at serious risk of not receiving repayment of their investments. ASIC also sought wind-up orders after the Westpoint companies failed to comply with its requirement to lodge accounts for certain financial years. These wind-up actions are still continuing. In February 2006, the Federal Court in Perth issued a wind-up order against Westpoint Corporation Pty Ltd. The ASIC had applied to wind up the company on grounds of insolvency. The ASIC believes that Westpoint Corporation is responsible for arranging, managing and coordinating Westpoint Group's property projects as well as holding money for other group companies. The ASIC was concerned that Westpoint Corporation was unable to pay its debts, including its obligations under the guarantees given to the mezzanine companies to make good expected shortfalls in the repayment of amounts owed to investors. The Westpoint Group's collapse is considered by many as the largest of its type in recent years, with small investors being the biggest group affected. Investors are currently joining forces to commence a class action against Westpoint and its advisors. RETAILERS: Accused of Fraudulently Marketing Organic Milk --------------------------------------------------------- In a scandal now ensnaring some of the nations leading retailers, a series of lawsuits have been filed accusing Wal- Mart, Costco, Target, Safeway, and Wild Oats of consumer fraud for marketing suspect organic milk. The legal filings in federal courts in Seattle, Denver, and in Minneapolis, against the retailers, come on the heels of class actions against Aurora Dairy Corp., based in Boulder, Colorado. The suits against Aurora and the grocery chains allege consumer fraud, negligence, and unjust enrichment concerning the sale of organic milk. This past April, Aurora officials received a notice from the U.S. Department of Agriculture detailing multiple and "willful" violations of federal organic law that were found by federal investigators. "This is the largest scandal in the history of the organic industry," said Mark Kastel of The Cornucopia Institute, a Wisconsin-based farm policy research group. Cornucopia's own investigations in 2005 first alerted USDA of Aurora's improprieties. Five lawsuits against the retailers have been filed so far. And law firms based in Seattle, St. Louis, New York and other cities have filed at least eight lawsuits against Aurora, representing plaintiffs in over 30 states. Aurora, with $100 million in annual sales, provides milk that is sold as organic and packaged as store-brand products for many of the nation's biggest chains. Besides Wal-Mart, Target, Costco, and Safeway, Aurora serves as supplier to 15 other national and regional chains. Independent investigators at the USDA concluded earlier this year that Aurora-with five dairy facilities in Colorado and Texas, each milking thousands of cows-had 14 "willful" violations of federal organic regulations. One of the most egregious of the findings was that from December 5, 2003, to April 16, 2007, the Aurora Dairy "labeled and represented milk as organically produced, when such milk was not produced and handled in accordance with the National Organic Program regulations." The stores sell Aurora's milk under their own in-house brand names in cartons marked "USDA organic," and typically with pictures of pastoral farm scenes. "That's not even close to the reality of where this milk was coming from," said Steve Berman, a Seattle lawyer whose firm is among those suing. "These cows are all penned in factory- confinement conditions." "This is the perfect example of modern-day Agri-business bullies literally stealing the milk money from an unsuspecting public," said Washington state consumer Rachael Doyle. For more, information, contact: The Cornucopia Institute Website: http://www.cornucopia.org RJ REYNOLDS: Minn. Appeals Court Revives “Dahl” Lights Lawsuit -------------------------------------------------------------- The Minnesota Court of Appeals allowed a suit claiming deceptive marketing of "light" cigarettes to go ahead in Hennepin County district court. Michael Dahl and David Huber first brought their lawsuit, “Dahl v. R. J. Reynolds Tobacco Co.,” in 2003. A Hennepin County district judge dismissed the case on May 11, 2005, because the “lights” claims are preempted by the Federal Cigarette Labeling and Advertising Act. On July 11, 2005, the plaintiffs filed a notice of appeal with the Minnesota Court of Appeals for the Fourth Judicial District. During the pendency of the appeal, RJR Tobacco removed the case to the U.S. District Court for the District of Minnesota. In general, the plaintiffs in “lights” suits allege that defendants made false and misleading claims that “lights” cigarettes were lower in tar and nicotine and /or were less hazardous or less mutagenic than other cigarettes. The cases typically are filed pursuant to state consumer protection and related statutes. On February 28, 2007, the Eighth Circuit remanded the case to the Minnesota Court of Appeals. In allowing the case to go ahead, Judge Christopher Dietzen disputed R.J. Reynolds' argument that the Federal Cigarette Labeling and Advertising Act prevented a lawsuit based on state consumer protection laws. "On this record, we cannot detect a consistent federal policy on low-tar claims, let alone one driven by the sort of important means-related federal objectives necessary to pre-empt conflicting state law," he wrote. David Howard, a spokesman for R.J. Reynolds, said the company plans to ask the Minnesota Supreme Court to review the appeals court decision, according to the report. The case is now before Judge Diana Eagon. R.J. Reynolds is owned by Reynolds American Inc. Reynolds American, Inc. -- http://www.reynoldsamerican.com/-- is primarily a holding company. The company's wholly owned operating subsidiaries include R.J. Reynolds Tobacco Co., Santa Fe Natural Tobacco Co., Inc., Lane, Limited (Lane) and R. J. Reynolds Global Products, Inc. RAI was created to facilitate the July 30, 2004, transactions to combine the U.S. assets, liabilities and operations of Brown & Williamson Holdings, Inc. (B&W), an indirect, wholly owned subsidiary of British American Tobacco p.l.c., with R. J. Reynolds Tobacco Co. One of the lawyers for the plaintiffs is: Kay Nord Hunt, Esq. Lommen, Abdo, Cole, King & Stageberg, P.A. 2000 IDS Center 80 South Eighth Street Minneapolis, MN 55402-2100 Phone: (612) 336-9341 Fax: 612) 339-8064 Web site: http://www.lommen.com SEARS: Recalls Hooded Sweaters Posing Strangulation Hazard ---------------------------------------------------------- Sears, in cooperation with the U.S. Consumer Product Safety Commission, is recalling about 5,200 personal identity-brand V- neck sweaters with hood imported by A & R Knitwear, of New York, N.Y. The company said the recalled sweaters have a drawstring through the hood, posing a strangulation hazard to children. In February 1996, CPSC issued guidelines to help prevent children from strangling or getting entangled on the neck and waist by drawstrings in upper garments, such as jackets and sweatshirts. No incidents/injuries have been reported so far. The recalled sweaters have a V-neck, hood and kangaroo pocket. The sweaters are either pink with charcoal stripes or blue with white stripes. They were sold in the following girls' sizes: small, medium, large, and extra large. The sweaters were made in Pakistan and sold at Sears stores nationwide during September 2007 for about $34. Consumers should immediately remove the drawstring to eliminate the hazard. For additional information, contact Sears at (800) 659-7026 between 7 a.m. and 9 p.m. CT Monday through Saturday, or visit http://www.sears.com. Note: CPSC was alerted to this hazard by the State of Connecticut's Department of Consumer Protection. To see this recall on CPSC's web site, including pictures of the recalled product, please go to: http://www.cpsc.gov/cpscpub/prerel/prhtml08/08118.html SIMPLICITY INC: Crib Manufacturers Face Suit Over Design Flaw ------------------------------------------------------------- A class action has been filed against Simplicity Inc., Target Corp. and Graco Children’s Products, Inc. after numerous incidents, including the death of 3 children, occurred due to a crib design flaw. Just prior to the filing of this lawsuit, the U.S. Product & Safety Commission announced their largest recall of full-sized cribs. The recalled cribs include the Aspen 4 in 1 that was sold between 1998 and May 2007. The lawsuit states that Simplicity should have warned customers of the dangers of the cribs and should have stopped selling them immediately. Questions concerning why it took two years for the Consumer Product Safety Commission to recall the cribs have been circulating. A congressional hearing has been requested in this matter. Ross Cellino urges “If your child or the child of a loved one has been injured as a result of the Aspen 4 in 1 crib or any other crib for that matter, please contact our office immediately. We are here to help you.” For more information, contact: Cellino & Barnes Phone: 1-800-483-2050 Website: http://www.CellinoandBarnes.com TEMPUR PEDIC: Securities Fraud Lawsuit in N.D. Ga. Dismissed ------------------------------------------------------------ The U.S. District Court for the Northern District of Georgia has dismissed an antitrust class action complaint filed Jan. 5 against Tempur Pedic International Inc. On January 5, 2007 a purported class action was filed against the Company in the United States District Court for the Northern District of Georgia, Rome Division. The action alleges violations of federal antitrust law arising from the pricing of Tempur-Pedic mattress products by Tempur-Pedic North America and certain distributors. The action further alleges a class of all purchasers of Tempur- Pedic mattresses in the United States since January 5, 2003 and seeks damages and injunctive relief. Count Two of the complaint was dismissed by the court on June 25, 2007 based on a motion filed by the Company. Then, following a decision issued by the United States Supreme Court in “Leegin Creative Leather Prods., Inc. v. PSKS, Inc.,” on June 28, 2007, the Company filed a motion to dismiss the remaining two counts of the complaint on July 10, 2007. The Company strongly believes that the action filed in the Georgia, Rome Division lacks merit, and intends to defend against the claims vigorously. Commenting on the recent ruling, Anita Nesser, Vice President and Corporate Counsel of Tempur Pedic, stated, "We are quite pleased that the court agreed completely with our view that the plaintiff's allegations were without merit, and dismissed this case in its entirety." The suit is “Jacobs et al v. Tempur-Pedic International, Inc., Case Number: 4:2007cv00002,” filed in the U.S. District Court for the Northern District of Georgia, under Judge Robert L. Vining Jr. WEST PUBLISHING: N.Y. Court Dismisses Suit Over BAR/BRI Course -------------------------------------------------------------- U.S. District Judge Lawrence E. Kahn of the Northern District of New York dismissed a class action filed against West Publishing Corp., and its parent company, Thomson Corp. the BAR/BRI bar review course, Amanda Bronstad of The National Law Journal reports. The suit was filed by Robert Arleo of Haines Falls, N.Y. in July. He alleges that the defendants used deceptive advertising materials to overcharge tens of thousands of law school students preparing for the New York bar exam. He said both companies offered consumers with fraudulent and misleading claims, such as that they must take the BAR/BRI bar review course in order to pass the state's bar exams. He alleges violations of New York's general business law, and is seeking $48 million in damages. In dismissing the suit, Judge Kahn disputed that the advertising materials were deceptive or misleading. He also said ruled that plaintiffs did not suffer actual injuries from the alleged conduct. Mr. Arleo is still undecided whether to appeal, according to Ms. Bronstad. Asbestos Alerts ASBESTOS LITIGATION: Casella Waste Reserves $366,000 for Cleanup ---------------------------------------------------------------- Casella Waste Systems Inc., for the quarter ended Oct. 31, 2007, recorded US$366,000 for asbestos-related cleanup matters, according to the Company's quarterly report filed with the U.S. Securities and Exchange Commission on Dec. 7, 2007. On July 12, 2005, Company subsidiary North County Environmental Services Inc. (NCES) received notice from the Office of the Attorney General of the State of New Hampshire (OAG) that it has commenced an official investigation into allegations that asbestos was concealed in loads of construction and demolition debris from a hotel renovation, delivered to the NCES landfill by a third party, and disposed there on several occasions between 1999 and 2002. While NCES has maintained that no asbestos was disposed of at the site, the OAG continued to be concerned that NCES did not operate in accordance with its landfill Operating Procedures so as to ensure that no asbestos was disposed of in the landfill. NCES has cooperated fully in the investigation. NCES has engaged in discussions with the OAG over the terms of a possible civil settlement regarding this matter which would involve environmental remediation at sites in New Hampshire at which the Company had no prior involvement. The OAG and the Company have reached an agreement with respect to this dispute in the form of a Consent Decree. The Consent Decree, while making it clear that the Company has admitted no wrongdoing, provides for the Company to make payments and provide services to various parties designated by the Consent Decree for total consideration of about US$366,000. Rutland, Vt.-based Casella Waste Systems Inc. is a vertically- integrated regional solid waste services company that provides collection, transfer, disposal and recycling services to residential, industrial and commercial customers, primarily in the eastern United States. ASBESTOS LITIGATION: ASARCO Clause Extends to All Insurance Cos. ---------------------------------------------------------------- Previous Court orders relating to the estimation proceedings of ASARCO LLC's asbestos liabilities stated that the portion of any plan of reorganization in the Debtors' cases and any order confirming that plan addressing the Debtors' asbestos liabilities will not be binding on and will not have any res judicata or collateral estoppel effect on or against Fireman's Fund Insurance Co. regarding its insurance coverage obligations. The Court Orders further provided that: 1. No reorganization plan will operate to expand the rights of any party or trust or diminish the duties and their obligations as to rights that exist under any policies issued by FFIC as of the Aug. 9, 2005 Petition Date; and 2. FFIC's non-participation in the negotiation of a reorganization plan will not be held against or in favor of any entity in any pending insurance coverage litigation concerning the Debtors' asbestos liabilities. Certain other insurance companies, other than FFIC, have or may assert an interest in the asbestos proceedings, Jack L. Kinzie, Esq., at Baker Botts LLP, in Dallas, tells the Court. Specifically, he notes, certain insurance defendants in adversary proceedings commenced by the Debtors have asked to enter into agreements that would afford them benefits and protections that are comparable to the benefits and protections afforded to FFIC in the Asbestos Orders. Thus, ASARCO LLC and the Asbestos Subsidiary Debtors agree that the asbestos estimation proceedings be "neutral" to all insurance companies that have or may assert an interest in the asbestos estimation proceedings, rather than being limited to FFIC. Accordingly, the Debtors ask the Court to enter an order binding all insurance companies in the "neutrality" clause afforded to FFIC. (ASARCO Bankruptcy News, Issue No. 61; Bankruptcy Creditors' Service, Inc. 215-945-7000 FAX 215-945-7001) ASBESTOS LITIGATION: ASARCO to Hire Anderson Kill as Counsel ---------------------------------------------------------------- After the Aug. 9, 2005 Petition Date, ASARCO LLC obtained Court approval to employ Anderson Kill & Olick, L.L.P., as its special insurance counsel. Thereafter, ASARCO obtained Court approval to expand the scope of Anderson Kill's employment to include the: (i) Analysis of certain prepetition insurance settlement and buybacks and (ii) Advisory services in connection with potential bankruptcy law actions relating to those settlements and buybacks. Nathaniel Peter Holzer, at Jordan, Hyden, Womble Culbreth & Holzer, P.C., in Corpus Christi, Tex., tells the Court that the Asbestos Subsidiary Debtors have similar issues concerning prepetition insurance settlement and buybacks. As a result, ASARCO and the Asbestos Debtors have filed a number of fraudulent conveyance actions, which are currently abated by Court order. In light of the substantial work Anderson Kill has performed for ASARCO and the impossibility of obtaining alternative counsel for the Asbestos Debtors at this late juncture, the Subsidiary Debtors states that they have an immediate need to retain Anderson Kill to perform the same services the firm performs for ASARCO. Accordingly, the Asbestos Debtors seek the Court's authority to employ Anderson Kill as their special insurance counsel, nunc pro tunc to April 11, 2005. Mr. Holzer says Anderson Kill will apply to the Court for compensation in connection with its services to the Asbestos Debtors at either its customary hourly rates or the discounted rates the firm previously agreed with ASARCO. Anderson Kill will also be reimbursed for any necessary out-of-pocket expenses. Rhonda D. Orin, a partner at Anderson Kill, assures the Court that her firm does not represent any interest adverse to ASARCO, the Asbestos Debtors, and their estates, and is a "disinterested person" as the term is defined in Section 101(14) of the Bankruptcy Code. (ASARCO Bankruptcy News, Issue No. 61; Bankruptcy Creditors' Service, Inc. 215-945-7000 FAX 215-945-7001) ASBESTOS LITIGATION: Filing of Late Claims May Delay ASARCO Plan ---------------------------------------------------------------- Permitting Mt. McKinley Insurance Co. and Everest Reinsurance Co. to file late proofs of claim would prejudice ASARCO LLC and delay its reorganization process, Omar J. Alaniz, at Baker Botts LLP, in Dallas, contends. "The floodgates would open for creditors in similar situation to take advantage of the Insurance Companies' inexcusable complacency," he says. ASARCO LLC assures the Court that it is laboriously drafting and negotiating its plan of reorganization and is on schedule to file it relatively soon. The Official Committee of Unsecured Creditors of the Asbestos Subsidiary Debtors and Robert C. Pate, the Court-appointed Future Claims Representative, support ASARCO's opposition to the Insurance Companies' request. The Asbestos Committee and the FCR assert that the Insurance Companies' failure to file the proofs of claim on or before the Bar does not constitute excusable neglect. (ASARCO Bankruptcy News, Issue No. 61; Bankruptcy Creditors' Service, Inc. 215-945-7000 FAX 215-945-7001) ASBESTOS LITIGATION: Grace, Other Parties File Daubert Motions ---------------------------------------------------------------- W.R. Grace & Co., the Official Committee of Asbestos Personal Injury Claimants, David Austern, the Court-appointed Future Claims Representative, and the Official Committee of Equity Security Holders filed motions to exclude or limit, under Daubert and Rules 702 and 703 of the Federal Rules of Evidence, testimony related to the Debtors' asbestos personal injury liabilities. The Debtors seek to exclude from evidence these expert reports and testimonies: -- The reports, testimony, and opinions of PI Committee experts Mark A. Peterson, the Peterson Rebuttal Report, the Stephen M. Snyder Rebuttal Report, and the Daniel P. Myer and Mark T. Eveland Rebuttal Report; -- The reports, testimony, and opinions of FCR experts Jennifer Biggs, Biggs Supplemental Report, Biggs Rebuttal Report, P.J. Eric Stallard, Stallard Supplemental Report, Marshall Shapo Rebuttal Report, and Jacob Jacoby Rebuttal Report; -- Any opinions, evidence, or testimony seeking to establish exposure to asbestos based on any "settled-dust analysis;" -- Any opinions, evidence, or testimony seeking to establish exposure to asbestos based on any "indirect-preparation method;" -- Any opinions, evidence, or testimony seeking to establish causation of asbestos-related disease based on anecdotal evidence, including but not limited to, case reports or case series; -- Any opinions, evidence, or testimony seeking to establish causation of an asbestos-related disease not supported by epidemiological evidence showing a relative risk greater than 2.0, the confidence interval for which does not include a relative risk of 1.0; -- Any opinions, evidence, or testimony seeking to establish the causation of an asbestos-related disease based on a "no- threshold" or "zero-threshold" theory of causation, including but not limited to, any calculations derived from or relying on those theories to those causation; and -- Any opinions, evidence, or testimony seeking to establish the occurrence or incidence of non-malignant asbestos-related disease based on diagnoses that do not include an exposure history with an appropriate latency period, chest radiograph evidence or small irregular opacities with an appropriate profusion as evaluated under ILO standards, a PFT revealing a restrictive impairment and below-normal diffusion capacity, a physical examination showing signs and symptoms, and a differential diagnosis of asbestosis that reliably rules out alternative causes of the disease. In a memorandum supporting their Daubert Motion, the Debtors assert that the PI Committee and the FCR's expert testimonies are not "fit" under Rule 702 and 408 because the expert testimonies measure the wrong thing -- Grace's hypothetical cost to resolve cases in the state-court tort system rather than Grace's legal liability. The PI Committee and the FCR's experts did not assume that Grace has filed for bankruptcy and, thus neither the company's bankruptcy nor any implications that flow from the application of bankruptcy law or procedures has any impact or effect on the estimates, David M. Bernick, P.C., at Kirkland & Ellis, LLP, in Chicago, points out. Mr. Bernick also asserts that the PI Committee and the FCR's expert opinions are barred under the reliability prong of Rule 702 as the PI Committee and the FCR's experts cannot show that their measurements are performed using "scientifically reliable" methods because they rely on historical settlement amounts rather than on "established, objective methods" of industrial hygience and epidemiology. A full-text copy of the 85-page Debtors' Memorandum is available for free at http://bankrupt.com/misc/grace_daubertmemorandum.pdf Judge Judith Fitzgerald directed parties-in-interest to file oppositions to the initial Daubert briefs and submit a list of trial exhibits and witnesses, and pre-trial briefs by Dec. 21, 2007. The PI Committee and the FCR have notified Judge Fitzgerald at an omnibus hearing that they would provide a written statement providing the subject areas of expected testimony of each of Stephen Snyder, Peter Kraus, John Cooney and Theodore Goldberg. The Court authorized the PI Committee to file under seal the unredacted versions of the expert rebuttal reports of Dr. Peterson and Mr. Snyder. The Court also directed the Owens Corning/Fibreboard Asbestos PI Trust to produce the electronic datasets, claimant information, claims processing information and other information to the Debtors. The Owens Corning information will be used solely in connection with the Grace estimation proceeding. The Debtors will bear the costs incurred by the Owens Corning Trust in extracting the information to be produced. (W.R. Grace Bankruptcy News, Issue No. 145; Bankruptcy